RAIMONDE ALONGE, Plaintiff v. EDWIN RIVERA, JAMES LEWKOWICZ, HECTOR PEREZ and EDWARD ENOKIAN, Defendants

This is a summary process action brought to recover possession of the subject rental premises located at 1 Eunice Avenue, Wareham, Massachusetts. The parties initially appeared on September 30, 2019 for the scheduled hearing and after several hours of testimony the matter was continued until October 28, 2019 for completion of trial. The parties then submitted proposed findings of fact and rulings of law which were received by the Court on November 17, 2019.

After hearing testimony, reviewing the evidence submitted by the parties and drawing reasonable inferences therefrom the Court finds the following;

1. That the Defendants reside at and the Landlord owns the property located at 1 Eunice Avenue, Wareham, Massachusetts ("Premises").

2. That the parties entered into a written agreement that rent for the premises is $2000.00 per month.

3. That prior to moving in the Defendant paid the Plaintiff the sum of $5000.00 on or about May 2017. This amount represented the first and last months' rent and $1000.00 towards a security deposit.

4. The premises are divided into a main portion (occupied by Defendant) and an in-law portion (control retained by Plaintiff but with access afforded to the Defendant).

5. The Plaintiff claims that $47,000.00 of rent is past due and payable.

6. That the Plaintiff caused to be delivered a 14 day notice to quit by last and usual place of abode and by postage paid 1st class mail to the Defendant(s) on April 4, 2019. I find the notice to be legally sufficient for the purposes intended;

7. That the Defendant(s) made certain repairs/renovations to the premises and that the cost of the materials was determined via stipulation of the parties to be $12,700.00.

8. There is no time records related to the time utilized for labor or of the hourly rate.

9. The Premises are only served by one set of utilities for heat and electric.

10. That the premises received complaints from the Town of Wareham in February and March of 2019 concerning the Defendants commercial use of the premises, the failure to register the property as rental and the presence of a dumpster.

Discussion

This case presents a rather complicated nature due to the myriad of issues presented and the distinct lack of writings between the parties concerning their relationship and their expectations of each other. As a result, the Court has organized the issues presented in order of significance.

The Rent

On the day of trial the Plaintiff testified that he had listed the premises for rent on craigslist and received a response from the Defendant. They met on May 26, 2017 and drafted a crude rental agreement that inter alia established a base rental amount of $2000.00 per month for June 2017 and last month's rent and a security deposit of $1000.00 [Note 1] According to the testimony of the Plaintiff, he applied the funds to the first months' rent, the last months' rent and a security deposit of $1000.00. With the exception of an additional $1000.00 received in December of 2017 the Defendant never paid any further rent. The Plaintiff further testified that he had provided the Defendant with instructions and account information so that the Defendant could deposit said rental sums directly to this account and buttressed that argument by submitting into evidence a series of texts that beginning in December of 2017 demanding unpaid rent from the Defendant. The Defendant responding first "I gave you money 2 weeks ago" and later "I was unaware that I had to give you money." (See Plaintiffs exhibit 4). When asked to explain the inordinate delay of two years in prosecuting the case for nonpayment of rent, the Plaintiff responded that his mother had been exceedingly ill and that her condition had occupied almost all of his time and left little time to pursue his claims against the Defendant for unpaid rent. I find the fact that the Plaintiff waited for more than two years to bring this action to be somewhat non-credible.

The Defendant countered with testimony that he had indeed paid all of the rent money due. He stated that he had regularly deposited cash in an envelope in a draw in the unoccupied in-law apartment. He stated that he never received any receipts for these deposits. This testimony was buttressed by that of Joseph Symonds who also stated that he had left cash in the Apartment. I find it difficult to believe that an individual would pay rent in the amount of $2000.00 per month totaling $58,000 over two years and not have any receipts or records of same. I find the testimony of the Defendant to be not credible on the issue of cash payments for rent.

In sum, the testimony of both parties is completely at odds with each other. In weighing the testimony and the sparse records provided by the parties I find the testimony of the Plaintiff to be marginally more credible than that of the Defendant. As a result I find for the Plaintiff for $58,000.00 in unpaid rent.

Quantum Meruit

This portion of the dispute between the parties serves as yet another example of the importance of reducing agreements to writing. The Court is presented with two experienced businessmen, one a contractor, and neither presented adequate evidence at trial which would assist the Court in accurately assessing what work was completed or the value of the labor related thereto.

The Plaintiff testified that he had agreed that the Defendant would do certain work to the property in exchange for a certain amount of rent. The scope and detail of the work was defined in a written document provided to him by the Defendant (See Plaintiff exhibit 3A hereinafter "contract.") In reviewing the submitted documentation, which was drafted by Defendant who is a licensed contractor, the scope of work was estimated to take 11 days and involved roofing, sheet rocking, ceiling work, painting the inside of the house, plumbing, flooring, carpeting and back porch work. The contract also states "3 guys" and "2000" which presumably is the cost related to labor. Contractual language is ambiguous "if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one." Citation Ens. Co. v. Gomez, 426 Mass. 379 , 381 (1998). When the language is ambiguous, it is construed against the drafter if the circumstances surrounding its use ... . do not indicate the intended meaning of the language." Merrimack Valley Nat'l Bank v. Baird, 372 Mass. 721 , 724 (1977). "The author of the ambiguous term is held to any reasonable interpretation attributed to that term which is relied on by the other party." Id. Finally, we construe a contract as a whole, so as "to give reasonable effect to each of its provisions." J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789 , 795 (1986). In this case, the contract is somewhat ambiguous with respect to the scope and detail of work to be performed, the cost of labor and the timeframe. As such I find that the estimate provided to the Plaintiff concerning the work done is 11 days, 3 guys at a cost of $2000.00. This sum was apparently credited to Defendant for June 2017 rent.

With respect to the other items of work performed by the Defendant, I find that the Plaintiff was aware of the work being done on the premises, did nothing to indicate his objection to any work and reaped a material benefit from same. While under a theory of quantum meruit the Defendant is entitled to the fair market value of the labor performed on the remaining services. There was at trial however, no testimony presented, expert or otherwise as to the value of services provided and no invoices or estimates for labor above and beyond that described in the contract. As such the Court is limited in what it may find concerning the value of the extra services provided to the value of the five windows which the Defendant testified cost $144.00 each.

Additionally, I find that the Defendant is entitled to the stipulated value of the materials of $12,700.00, the costs of two dumpsters with surcharge of $850.00 and the cost of the 5 windows valued at $720.00 totaling $14,270.00 to be offset against the judgment for the Plaintiff for unpaid rent.

Commingling

The parties both testified that there was an in-law apartment under the control of the Plaintiff. While the Defendant had a key to apartment he testified that other than making alleged rental payments he was not allowed use of this area. The parties also testified that the heating system and the electrical system serviced both the rented premises and the in-law apartment. There is no evidence that the parties had any agreement in writing concerning the payment of utilities for the in-law apartment. The Defendant did not present any evidence concerning utility invoices and in his proposed findings request. In such circumstances, the proper measure of damages is the greater of the Defendants entire electric bill or three months' rent. The Defendant has requested three months' rent as damages plus reasonable attorney's fees.

The Court thus awards the Defendant $6000.00 to be offset against the judgment amount for Plaintiff. The Court will also allow the Defendant to submit a motion for attorney's fees accompanied by an affidavit in support of same within ten (10) days from the receipt of this decision to both the Court and Plaintiff. The Plaintiff shall have the right to oppose this motion and to seek a hearing on same within ten (10) days of receipt of Defendants motion.

Retaliation

The Plaintiff alleges that the sole reason he terminated the Defendants tenancy and commenced this summary process action was based upon nonpayment of rent. After reviewing the evidence and testimony, I find the testimony of the Plaintiff to be credible on this issue. As such I find that the primary reason the Landlord took such action was based upon the non payment of the Defendants. Judgment for the Plaintiff, and against the Defendants on the issue of retaliation.

Negligence

The Defendanst failed to introduce adequate evidence, testimonial or otherwise that would be sufficient to support a claim of negligence on the part of the Plaintiff. I find for the Plaintiff and enter judgment against the Defendant on the issue of negligence. See Jupin v Kask, 447 Mass. 141 , (2006).

Breach of the Warranty of Habitability

The Defendant provided testimony and photographic evidence concerning the conditions within the premises. He testified that a majority of these conditions existed at the time he moved in and with the exception of repairs he made, continue to present day. I credit his testimony and the supporting photographs. Based upon my consideration of the testimony and evidence presented at trial, I find that these conditions materially interfered with the Defendants' use and enjoyment of the premises. I also find that the Plaintiff had actual knowledge about the conditions existing within and without the premises.

There exists with respect to every residential tenancy an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of this warranty where there exist defects that may materially affect the health or safety of occupants. Boston Hous. Authy. v. Hemingway, 363 Mass. 184 , 199 (1973). The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979). Under the implied warranty of habitability, the landlord assures that the premises, including common areas, meets the standards of the State Sanitary Code. 105 CMR 410, 780 CMR 1 et seq. A tenant is entitled to damages equivalent to the value of the premises as warranted minus their value in their actual, defective condition. Boston Hous. Authy. v. Hemingway, 363 Mass. 184 (1973); Haddad v. Gonzalez, 410 Mass. 855 (1991). It is usually impossible to fix warranty damages with mathematical certainty; however, the case law permits the court to use approximate dollar figures as long as those figures are reasonably grounded in the evidence at trial. Young v. Patukonis, 24 Mass. App. Ct. 907 (1987).

The parties briefly addressed a short period of time when, due to a malfunction there was a shortage or failure to provide hot water. With respect to this, I find that the circumstances involving the frozen pipe created an intervening event that was primarily responsible for the loss of hot water. Apparently according to the testimony of the parties the loss of hot water was for a minimal period of time making it de minimus in nature. I find an award of damages for interference for this deficiency would be duplicative with the aforementioned commingling issue and as a result the Defendant is entitled to one award of damages arising from the same operative facts. Wolfberg v. Hunter, 385 Mass. 390 (1982).

In considering a breach of the warranty of habitability "[t]he existence of a material or substantial breach is a question of fact and must be determined in the circumstances and facts of each case." Jablonski v. Casey, 64 Mass. App. Ct. 744 , 746 (2005). "Factors ... aiding the court's determination of the materiality of an alleged breach ... include: (a) the seriousness of the claimed defects and their effect on the dwelling's habitability; (b) the length of time the defects persist; (c) whether the landlord . . . received written or oral notice of the defects; (d) [whether] the residence could be made habitable within a reasonable time; and (e) whether the defects resulted from abnormal conduct or use by the tenant." Ibid. quoting from Boston Hous. Authy. v. Hemingway, 363 Mass. at 200-201.

The Defendant further testified that the property was in significant disrepair and that this condition caused his wife and children to refuse to occupy same. The Defendant testified that the roof was leaking, the windows leaked and were drafty, the exterior was missing siding allowing wind and rain to penetrate the building, the gutters were in significant disrepair allowing water to flood areas of the premises, leaky pipes under the kitchen sink, significant amounts of debris in the yard, missing rails on stairwells, damaged electrical outlets, holes in walls and other sundry deficiencies. I found the testimony of the Defendant to be credible on the issue of the habitability and condition of the premises.

Based upon the testimony of the parties and the photographs supplied by the Defendant, I find that the value of the property is 30% less than the value established by the rent. In the case at bar, the total sum claimed as unpaid by the Plaintiff is $58,000 (29 months X $2000.00 -$1000.00 for December 2017 credit) less $17,400.00 (29 months X $600.00 (30% diminished value) = $40,600.00 due and payable subject to the offsets noted below. This amount is to be credited from the Plaintiffs judgment amount on unpaid rent.

Intentional Infliction of Severe Emotional Distress

The Defendants failed to introduce adequate evidence that would be sufficient to support a claim of intentional infliction of severe emotional distress on the part of the Plaintiff. As a result, I find for the Plaintiff and enter judgment against the Defendants on the issue of intentional infliction of emotional distress.

Breach of Contract

The parties executed an ambiguous contract, drafted by the Defendant which outlined in very rough terms a scope of work to be completed and the sum (2000) to be paid for those efforts. There was no other written evidence submitted to the court which identified additional work to be completed or the labor costs associated with same. From the records provided, the Defendant was credited with $2000.00 for the month of June 2017. As to any other work done under the theory of Quantum Meruit those claims fail for the reasons discussed above. Judgment for Plaintiff and against Defendant on the claim of Breach of Contract.

Breach of Covenant of Good Faith and Fair Dealing

Defendant claims, and rightly so, that in Massachusetts every contract contains a covenant that the parties will act in good faith and deal fairly with each other. The Defendant did not provide any evidence, testimonial or otherwise, that would support the elements necessary for such a claim to prevail. While the Court did see evidence of work being done at the property above and beyond the scope initially agreed upon, there was no evidence, direct or otherwise as to the value of the services provided by the Defendant. Additionally there was little if any evidence that would support a claim that the Plaintiff behaved in and unfair manner or in bad faith. As such the Court cannot find for the Defendants' and enters judgment for the Plaintiff on the Defendants claim of breach of the Covenant of good faith and fair dealing.

Interim Order and Entry of Judgment. For the above-stated reasons,

1. Judgment shall enter for the Plaintiff for $58,000 in unpaid rent and the costs related to the prosecution of this matter. This amount is subject to the following offsets;

a. Less $17,400.00 for diminished value of the premises;

b. Less $14,270.00 in stipulated value of materials;

c. Less $6000.00 in commingling of utilities;

d. Less $5,000.00 in prepaid rent and deposits;

e. Less $2,000.00 rent credit for June 2017;

f. Less $1,000.00 for December 2017 rent.

Total amount due and payable from Defendants to Plaintiff is $12,330.00.

2. Judgment shall enter for the for the Defendants for possession pursuant to the fifth paragraph of G.L. 239, s. 8A, on the condition that within seven (7) days of the receipt by the Defendant of this order, the Defendant deposits with the Clerk of this Court the sum of $12,330.00, plus $439.60 for court costs, totaling $12,769.60 in the form of a certified check, cashier's check or money order, payable to the Plaintiff. If this deposit is made, the Clerk shall immediately release all funds held to the Plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the Plaintiff for possession and damages in the amount of $12,330.00, plus costs in the amount of $439.60 the next business day following the expiration of the tenth (10th) day from the date of this order is received by the Defendants.

3. Judgment for the Plaintiff on the Defendant counterclaims

a. Retaliation

b. Negligence

c. Intentional infliction of severe emotional distress

d. Breach of Contract

e. Breach of the implied covenant of good faith and fair dealing

4. Defendants shall file within ten (10) days of the receipt of this judgment a motion for counsel fees along with supporting affidavit related to the prosecution of the commingling counterclaim to both the Court and counsel for Plaintiff and mark the matter for a hearing. If no motion is received within the prescribed time frame the Defendants opportunity for attorney's fees and cost will be terminated and final judgment on the above terms and conditions shall enter.

SO ORDERED